Fourth Amendment Commons^™

Beyond The Face: Examining Legal Regulations For Law Enforcement Facial Recognition Technology, Insun Park

Akron Law Review

No abstract provided.

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

Computationally Assessing Suspicion, Wesley M. Oliver, Morgan A. Gray, Jaromir Savelka, Kevin D. Ashley

University of Cincinnati Law Review

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …

Crowdsourcing Surveillance, Chaz Arnett

Faculty Scholarship

In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way for the development of slave patrols and other early iterations of policing where incredible acts of violence against Black bodies were made ordinary and essential. He explains how this legacy continues today with Fourth Amendment jurisprudence not simply failing to protect rights but rather licensing police violence …

Constitutional Law—Fourth Amendment: Without Your Clothes, The Fourth Amendment Goes, Courtney Murray

University of Arkansas at Little Rock Law Review

No abstract provided.

The Ambiguity Of Probable Cause And Its Contentious Application By Police, Dave Sainte-Luce

College Honors Program

It is well documented how our country’s Criminal Justice System has a history of targeting people of color. A lot of this contention is derived from police officers’ behavior when interacting with individuals, yet officers only act upon the laws and legal policies that grant them authority, including probable cause. My thesis addresses the question, how does the fluid and ambiguous nature of probable cause leave the door open for officers to disproportionately target people of color in the United States? While focusing on vehicle, person, and property searches, I first define probable cause, building an understanding of exactly what …

Reforming The High-States Gamble Of Covert Government Seizures, Jonathan Witmer-Rich

Law Faculty Articles and Essays

In a covert government seizure, police secretly enter a home when no one is present and seize contraband, often staging the scene to look like a burglary. These covert seizures are authorized by delayed notice search warrants. This Article identifies two serious problems with this practice and proposes reforms.

The first problem is that a successful covert seizure will likely provoke violent retaliation against innocent third parties. If the target of the covert seizure--say a drug dealer--believes someone has stolen a valuable drug stash, the dealer will seek to kill or harm whomever they believe conducted the burglary. The statute …

A World Of Difference? Law Enforcement, Genetic Data, And The Fourth Amendment, Christopher Slobogin, J. W. Hazel

Vanderbilt Law School Faculty Publications

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment "search" does not occur unless police infringe "expectations of privacy society is prepared to recognize as reasonable" and has construed that phrase narrowly, without reference to …

Police As Community Caretakers: Caniglia V. Strom, Christopher Slobogin

Vanderbilt Law School Faculty Publications

What is the proper role of the police? That question has been at the forefront of debates about policing for quite some time, but especially in the past year. One answer, spurred by countless news stories about black people killed by law enforcement officers, is that the power of the police should be reduced to the bare minimum, with some in the Defund the Police movement calling for outright abolition of local police departments. Toward the other end of the spectrum is the notion that the role of the police in modern society is and must be capacious. Police should …

Law Enforcement Welfare Checks And The Community Caretaking Exception To The Fourth Amendment Warrant Requirement, Andrea L. Steffan

Loyola of Los Angeles Law Review

No abstract provided.

Tear Gas + Water Hoses + Dispersal Orders: The Fourth Amendment Endorses Brutality In Protest Policing, Karen Pita Loor

Faculty Scholarship

Thirty years ago, in Graham v. Connor, the Supreme Court determined that excessive-force claims against police should proceed via the Fourth Amendment, which theoretically protects an individual against unreasonable seizures. However, the Court showed extreme deference to law enforcement’s use of force by using a permissive reasonableness analysis that bestows on police great leeway to make quick split-second decisions in tense and rapidly evolving circumstances. The result is a test that, from its inception, has been too forgiving of police violence and misconduct. This lax reasonableness standard, along with qualified immunity principles, has shielded police from § 1983 civil rights …

State V. Pinkham: Erosion Of Meaningful Forth Amendment Protection For Vehicle Stops In Maine?, Roger M. Clement Jr.

Maine Law Review

In State v. Pinkham, the Maine Supreme Judicial Court, sitting as the Law Court, held that a police officer's stop of a motorist to inquire and advise about the motorist's improper-but not illegal-lane usage did not necessarily violate the Fourth Amendment's proscription against unreasonable seizures. The Pinkham decision is the first time that the Law Court has validated the stop of a moving vehicle in the absence of either a suspected violation of law or an imminent, ongoing threat to highway safety.
This Note considers whether the Law Court was correct in sustaining the police officer's stop of Ronald Pinkham. …

In General Public Use: An Unnecessary Test In Fourth Amendment Searches Using Advanced Sensing Technology, Mike Petridis

Touro Law Review

No abstract provided.

A New Era: Digital Curtilage And Alexa-Enabled Smart Home Devices, Johanna Sanchez

Touro Law Review

No abstract provided.

Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza

Journal of Race, Gender, and Ethnicity

No abstract provided.

To Knock Or Not To Knock? No-Knock Warrants And Confrontational Policing, Brian Dolan

St. John's Law Review

(Excerpt)

This Note proceeds in three parts. Part I begins by explaining what no-knock warrants are and why they are used. Part I then addresses recent state legislative efforts to reform no-knock warrant use and argues that these efforts, however well-intentioned, are insufficient. Part I will also provide a brief history of how no-knock warrant use developed and gives an overview of the current status of state law regarding no-knock warrants. Part II argues that, contrary to the arguments of no-knock proponents, elimination of no-knock warrants and strict adherence to the knock-and-announce requirement is a more effective way to ensure …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Joshua Gupta-Kagan

Faculty Scholarship

The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied …

The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce

West Virginia Law Review

No abstract provided.

Licensed To Kill? An Analysis Of The Standard For Assessing Law Enforcement's Criminal Liability For Use Of Deadlly Force, Raoul Shah

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The Fallacy Of A Colorblind Consent Search Doctrine, Beau C. Tremitiere

Northwestern University Law Review

Most searches conducted by police officers are “consensual” and thus beyond the reach of the Fourth Amendment. However, such searches violate the Fourth Amendment when, under the totality of circumstances, consent appears to be a product of coercion—that is, when the consent was involuntary. In 1980, in Mendenhall v. United States, the Supreme Court identified race as a relevant factor courts should consider but failed to explain precisely why race was relevant. After decades of mistreatment and state-sanctioned violence, distrust of law enforcement was rampant in communities of color, and the Mendenhall Court correctly intuited (but failed to describe) the …

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Paul Butler

Northwestern Journal of Law & Social Policy

No abstract provided.

Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work?

Northwestern Journal of Law & Social Policy

No abstract provided.

Do Foreign Nationals Really Have Constitutional Rights?, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Last month, President Trump issued an executive order that has become known as the "travel ban." Among other things, the ban sought to temporarily exclude from the United States foreign nationals from seven predominantly Muslim countries.

Almost immediately, a number of plaintiffs sued and succeeded in obtaining "stays" preventing the ban from going into effect until the cases can be tried. Courts granted these stays because they found that the ban was likely to violate, among other things, anti-discrimination principles embedded within the First and Fifth Amendments to the United States Constitution.

Constitutional Law—Fourth Amendment And Seizures— Accidental Seizures By Deadly Force: Who Is Seized During A Police Shootout? Plumhoff V. Rickard, 134 S. Ct. 2012 (2014)., Adam D. Franks

University of Arkansas at Little Rock Law Review

No abstract provided.

Duty Of Candor In The Digital Age: The Need For Heightened Judicial Supervision Of Stingray Searches, Andrew Hemmer

Chicago-Kent Law Review

This Note explores the constitutional implications of the use of a device known as the “Stingray” in criminal investigations. This device masquerades as a cell phone tower and forces all cell phones within a considerable range to connect to it, transmitting data and allowing law enforcement to ascertain the location of each cell phone. The use of Stingrays raises important Fourth Amendment concerns that have been brought to light most significantly by the 2008 federal prosecution of Daniel Rigmaiden. This Note argues that Stingray use constitutes a Fourth Amendment search and that a new standard of warrant requirements is needed …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Trying To Fit A Square Peg Into A Round Hole: Why Title Ii Of The Americans With Disabilities Act Must Apply To All Law Enforcement Services, Michael Pecorini

Journal of Law and Policy

Police use of force has been subject to greater scrutiny in recent years in the wake of several high-profile killings of African Americans. Less attention, however, has been paid to the increasingly routine violent encounters between police and individuals with mental illness or intellectual and development disabilities (“I/DD”). This is particularly problematic, as police have become the de-facto first responders to these individuals and far too often police responses to these individuals result in tragedy.

This Note argues that the Americans with Disabilities Act requires law enforcement to provide reasonable accommodations during their interactions with and seizures of individuals with …

Cutting Cops Too Much Slack, Wayne A. Logan

Scholarly Publications

Police officers can make mistakes, which, for better or worse, the U.S. Supreme Court has often seen fit to forgive. Police, for instance, can make mistakes of fact when assessing whether circumstances justify the seizure of an individual or search of a residence; they can even be mistaken about the identity of those they arrest. This essay examines yet another, arguably more significant context where police mistakes are forgiven: when they seize a person based on their misunderstanding of what a law prohibits.

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Faculty Articles

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …